On February 21, 2017 the Secretary of the Department of Homeland Security, issued two memoranda providing direction on the implementation of the President’s Executive Orders. These memoranda rescind all prior memoranda and guidance on immigration enforcement with the exception of the 2012 DACA memorandum and the 2014 DAPA memorandum. These memoranda mostly address the Trump administration’s directives to prioritize the detention and deportation of individuals who are deportable. However, these memoranda address a number of changes to U.S. immigration policy that also impact individuals who have been lawfully admitted to the U.S. in valid nonimmigrant status. Specifically, foreign nationals who were lawfully admitted may become deportable in the event that they are arrested and their nonimmigrant visas are revoked while they are in the United States. These individuals are now considered by the Department of Homeland Security to be included among removal / deportation priorities.

A more detailed summary of the policies in these memoranda follows:

Expanding the definition of “removable alien”

There are no longer broad based exemptions from potential enforcement for certain classes or categories of removable aliens. Rather, these memoranda establish guidance that agency personnel must prioritize removable noncitizens who:

Have been convicted of any criminal offense.

Have been charged with any criminal offense that has not been resolved.

Have committed acts which constitute a chargeable criminal offense.

Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency.

Have abused any problem related to receipt of public benefits.

Are subject to a final order of removal and have not departed from the United States regardless of the date of the final order.

Pose a risk to public safety or national security, in the judgment of an immigration officer.

It is important to note that neither the Executive Orders nor the implementing memoranda provide any specific criteria or guidance on how Immigration and Customs Enforcement (ICE) agents will determine whether certain acts constitute a chargeable criminal offense or whether a noncitizen poses a risk to public safety or national security. There is also no explanation of what constitutes an abuse of a government benefit program. In addition, it will not be necessary for a court hearing to establish whether a foreign national, in fact, meets these criteria before charging the individual as being removable on those grounds and initiating removal proceedings.

This means that your sponsored employees on nonimmigrant visas and foreign students in F-1 or J-1 status may find themselves subject to removal proceedings for relatively minor offenses (which may include, in some jurisdictions, traffic offenses). Prior to the issuance of the Executive Order and these implementing memoranda, similar minor offense would not have impacted a valid nonimmigrant status. Therefore, it is important that foreign nationals seek immigration counsel immediately after any encounter with law enforcement.

Increasing enforcement

The executive order and the implementing memoranda make the following provisions for increased enforcement activities :

a.ICE is directed to hire 10,000 new officers.

b.Reducing the use of prosecutorial discretion on whether to initiate removal proceedings to a limited case-by-case basis.

c.Arrest or apprehend individuals whom an immigration officer has probable cause to be believe is in violation of the immigration laws. Organizations should be diligent in advising foreign workers and other members of their community to carry their immigration documents (e.g., passports, USCIS approval notices, I-94 Record of Admission, and I-20s or DS-2019s) with them at all times.

d.Establishing the Victims of Immigration Crime Engagement (VOICE) Office ; removal of privacy rights and protections for all foreign nationals other than US Permanent Residents and collection and reporting of data on the apprehension and release of foreign nationals:These facets of the policy memoranda are designed to create a liaison between ICE and known victims of crimes committed by removable foreign nationals to provide information about the foreign national, including immigration status and custody status to the victims, as well as the general public. Exceptions are to be made to comply with certain laws relating to classified information.

The memoranda instruct ICE to develop and provide a weekly report to the public of aliens released from the custody of state and local governments. The report will include the alien’s immigration status, the arrest, charge, or conviction for which he or she was in custody and the date of release from custody, the reason for release and an explanation for why the detainer or similar request for custody was not honored, as well as all arrests, charges, or convictions that may have occurred after the alien’s release from the custody of that jurisdiction.

These ICE reports may include foreign nationals on employment sponsored visas who have been apprehended by ICE even for relatively minor offenses, including information about their immigration status, and possibly the identity of the sponsoring employer. While it is not yet clear on the extent of information that ICE will publish in such notices, it is cause for concern that employers may be exposed to negative press for something as minor as a reckless driving offense by an employee.

Establishing of programs to collect authorized civil fines and penalties

The memoranda instructs ICE, Customs and Border Protection (CBP) and US Citizenship and Immigration Services (USCIS) to issue guidance and promulgate regulations to ensure the assessment and collection of all fines and penalties which DHS is authorized under the law to collect from aliens and those who facilitate their unlawful presence in the United States.

For employers, this may mean potential liability where an employee is, perhaps unknowingly, in violation of her or his nonimmigrant status, if the government believes that the employer is somehow “assisting” a removable alien to remain in the United States.

Increased border enforcement activities both along the southern border and within the US:

The memoranda provide for the following changes in government enforcement actions along the border:

The construction of a physical wall on the southern border.

The construction of detention facilities along the border with Mexico, and the assignment of asylum officers and immigration judges to expeditiously process applications for asylum or other forms of relief from removal.

The expansion of detention for those apprehended upon entry to the United States.

The expansion of the use of “expedited removal” to undocumented persons anywhere within the United States, and not merely along the border, if they cannot establish two years of physical presence since their entry.

The enforcement of immigration laws against those individuals who – directly or indirectly – facilitate the smuggling or trafficking of children into the United States.

What rights do your employees have if apprehended by ICE?

Every person in the United States has certain rights regardless of his or her immigration status, including the following:

Noncitizens have the right to remain silent if ICE or the police show up at their homes or their places of work.

Noncitizens have the right to see a warrant issued by a judge before they permit ICE to enter their homes. Ajudicial warrant must be signed by a judge and have the noncitizen’s specific address on it. If the officers have a warrant, noncitizens should ask that it be slipped underneath the door or shown through a window. If the officers have an administrative warrant signed by ICE they must have the individual’s consent to enter.

Noncitizens have the right to speak to a lawyer and ask for a phone call if they are detained. However, unlike in criminal proceedings, the government will not provide them with a lawyer.

In many cases, noncitizens have the right to a hearing before an immigration judge prior to deportation. Noncitizens should not sign anything without first speaking with a lawyer.

Noncitizens in the United States who do not have a prior order of deportation generally have a right to appear before an immigration judge in removal proceedings. If they are eligible for relief from removal through asylum, cancellation of removal or other avenues, they will have a chance to present their request at a full hearing in immigration court. Of course, the immigration courts are severely backlogged and thus such hearings may be years away. If they have not been convicted of certain offenses and are otherwise eligible, they will have the right to seek bond and be released from ICE detention pending the final outcome in their removal proceedings case.

We advise that employers affirmatively discuss these new enforcement policies with foreign national staff and establish appropriate policies with respect to those items which may directly impact these employees and business operations more generally.